[Cite as State v. Yates,
2023-Ohio-1019.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
JASON W. YATES,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 CO 0006
Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2020 CR 022
BEFORE:
Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Vito Abruzzino, Columbiana County Prosecutor and Atty. Ryan P. Weikart, Chief
Assistant Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432, for
Plaintiff-Appellee
Atty. Joseph W. Gardner, Joseph W. Gardner Co., LPA, 1386 NE River Road, Lake
Milton, Ohio 44429, for Defendant-Appellant.
Dated: March 24, 2023
–2–
WAITE, J.
{¶1} Appellant Jason W. Yates appeals a February 8, 2022 judgment entry of
the Columbiana County Court of Common Pleas convicting him of multiple drug related
offenses. Appellant challenges his sentence based on various comments made by the
state at the sentencing hearing. For the reasons that follow, Appellant’s arguments are
without merit and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} This appeal concerns a large-scale drug investigation. Because Appellant’s
charges resulted in a plea agreement, details surrounding the investigation are sparse.
However, Appellant admittedly is a drug dealer who sells on a moderate level in an area
spanning across multiple Ohio counties. This appeal stems from a drug investigation that
resulted in the arrest and indictment of fourteen individuals, including Appellant. It
appears that although Appellant is not considered a high-level dealer, he operates as
somewhat of a ring leader for this group of individuals in Columbiana County.
{¶3} On January 9, 2020, Appellant and his thirteen codefendants were charged
with thirty-five counts of drug related crimes by secret indictment. Appellant was indicted
on the following charges: one count of aggravated trafficking in drugs, a felony of the
fourth degree in violation of R.C. 2925.03(A)(1); one count of possession of cocaine, a
felony of the fourth degree in violation of R.C. 2925.11(A) with a forfeiture specification
involving $2,028 in accordance with R.C. 2941.1417(A); one count of possession of
heroin, a felony of the fifth degree in violation of R.C. 2925.11(A) with a forfeiture
specification involving $2,028 in accordance with R.C. 2941.1417(A); two counts of
aggravated possession of drugs, a felony of the fifth degree in violation of R.C. 2925.11(A)
Case No. 22 CO 0006
–3–
with a forfeiture specification involving $2,028 in accordance with R.C. 2941.1417(A); and
possession of drugs, a felony of the fifth degree in violation of R.C. 2925.11(A) with a
forfeiture specification involving $2,028 in accordance with R.C. 2941.1417(A).
{¶4} On February 9, 2021, Appellant pleaded guilty to all counts as charged in
his indictment. There was no agreement on sentencing, but the state asserted that it
would recommend an aggregate sentence of eighteen months of imprisonment. The
court scheduled Appellant’s sentencing hearing for April 22, 2021.
{¶5} On April 19, 2021, Appellant filed a motion to continue his sentencing
hearing. Appellant apparently suffers from uncontrolled diabetes, which has caused
various other health problems. In his motion for continuance, Appellant claimed that he
was hospitalized in a “skilled nursing home” “for treatment of diabetic related open
wounds.” (4/19/21 Motion to Continue.) On April 20, 2021, the trial court granted the
motion and continued the sentencing hearing to May 20, 2021. On May 14, 2021,
Appellant filed a second motion to continue sentencing because he continued to suffer
open wounds. A doctor’s note attached to the motion stated that Appellant would likely
need one to two months to fully recover. On May 18, 2021, the court granted the motion
and continued the hearing until August 6, 2021. On August 4, 2021, Appellant filed a third
motion to continue sentencing due to a MRSA infection. In the motion he specified that
his condition would be reevaluated in ten days. The court granted the motion and
continued the hearing beyond the ten days requested, setting it for August 27, 2021. On
August 24, 2021, Appellant filed his fourth motion to continue sentencing, still based on
the MRSA infection. Although the accompanying doctor’s note did not specify any
timeline for Appellant’s recovery, in his motion he requested a continuance of four weeks.
Case No. 22 CO 0006
–4–
The court granted the motion and continued the hearing until October 8, 2021, but on
October 4, 2021, Appellant filed a fifth motion for continuance due to the MRSA infection.
Appellant’s motion was again granted and the hearing was set for November 29, 2021,
but on that date Appellant filed a sixth motion to continue, alleging he was hospitalized.
On November 30, 2021, the court granted the motion and continued the sentencing
hearing until December 20, 2021.
{¶6} Appellant did not file seeking a subsequent continuance, but failed to
appear at the December 20, 2021 hearing. The court issued a judgment entry on that
date noting Appellant’s failure to appear, and after weighing Appellant’s health issues
against his criminal record, which included a pending criminal case in Summit County,
the court issued a bench warrant for Appellant’s arrest.
{¶7} The Columbiana County prosecutor received a tip from the Mahoning
County Prosecutor’s Office that Appellant had been arrested in Mahoning County at a
hotel, and Appellant was subsequently arrested on the bench warrant in this matter on
January 21, 2022. Apparently, officers in Mahoning County located Appellant hiding
underneath a bed in a hotel room. Officers found methamphetamine in the room, which
Appellant initially said belonged to him, leading to his arrest. Appellant later changed his
statement and claimed that the drugs were not his.
{¶8} Appellant appeared at a sentencing hearing in this matter on February 3,
2022. At its commencement, Appellant’s appointed counsel informed the court that
Appellant had actually retained an attorney from West Virginia. However, finding that this
lawyer had not filed a notice of appearance, the court declined appointed counsel’s oral
motion for a continuance. During the hearing, the state mistakenly first recommended a
Case No. 22 CO 0006
–5–
sentence of twenty-four months, but when reminded by defense counsel that the plea
bargain called for a recommendation of eighteen months the state changed its
recommendation to conform with the earlier agreement.
{¶9} Appellant expressed disappointment the court had issued a bench warrant
because he thought the court was “on board” with allowing him to seek treatment before
sentencing and he believed the court would allow him to completely regain his health
before imposing a sentence. He claimed that he had been hospitalized throughout the
entire period of continuance in this matter. The court responded by stating “[t]he medical
issues that [Appellant] suffers from are unfortunate. But I do note that he was arrested
January 21st, in a hotel room, not in a hospital, not in a nursing home, and drugs were
recovered from that Holiday Inn room.” (Sentencing Hrg. Tr., p. 22.) The court sentenced
Appellant to an aggregate sentence of three and one-half years of incarceration.
Appellant inquired as to whether he could “bond out” but was informed by the court that
he could not. It is from this entry that Appellant timely appeals.
ASSIGNMENT OF ERROR
The Prosecution breached the felony plea agreement when the assistant
prosecutor recommended that the Defendant-Appellant be sentenced to 24
months after the parties agreed to a 18 month sentence recommendation.
{¶10} Appellant does not now challenge the court’s issuance of a bench warrant
or its refusal to continue the matter after he failed to appear at his December 20, 2021
sentencing hearing. Instead, Appellant takes issue with the state’s sentencing
Case No. 22 CO 0006
–6–
recommendation. In response, the state argues that it simply made an error that was
immediately corrected, causing no harm to Appellant.
{¶11} “[A]n appellate court may vacate or modify a felony sentence on appeal only
if it determines by clear and convincing evidence that the record does not support the trial
court's findings under relevant statutes or that the sentence is otherwise contrary to law.”
State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d 1231, ¶ 1.
A sentence is considered to be clearly and convincingly contrary to law if it
falls outside of the statutory range for the particular degree of offense; if the
trial court failed to properly consider the purposes and principles of felony
sentencing as enumerated in R.C. 2929.11 and the seriousness and
recidivism factors set forth in R.C. 2929.12; or if the trial court orders
consecutive sentences and does not make the necessary consecutive
sentence findings.
State v. Pendland, 7th Dist. Mahoning No. 19 MA 0088, 2021-Ohio-1313, ¶ 41; citing
State v. Collins, 7th Dist. Noble No. 15 NO 0429,
2017-Ohio-1264, ¶ 9; State v. Bonnell,
140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, ¶ 30.
{¶12} In addition, a court of appeals is limited in its review of a felony sentence.
The Ohio Supreme Court has clarified an appellate court’s review of felony sentences in
State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729,
169 N.E.3d 649. The Jones Court
clarified the standard of review for felony sentences that was previously announced in
Marcum. The Marcum Court held “that R.C. 2953.08(G)(2)(a) compels appellate courts
to modify or vacate sentences if they find by clear and convincing evidence that the record
Case No.
22 CO 0006
–7–
does not support any relevant findings under ‘division (B) or (D) of section 2929.13,
division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code.’ ” Marcum, supra, ¶ 22. The Jones Court did not specifically overrule
Marcum, but clarified certain dicta to reflect that “[n]othing in R.C. 2953.08(G)(2) permits
an appellate court to independently weigh the evidence in the record and substitute its
judgment for that of the trial court concerning the sentence that best reflects compliance
with R.C. 2929.11 and 2929.12.”
Jones, supra, at ¶ 42.
{¶13} At the outset, we note that since there was no agreement on sentencing
when Appellant agreed to plead guilty to these crimes, the trial court remained free to
exercise its discretion in sentencing. While the state could recommend a specific term
and Appellant was free to ask for a lesser prison sentence, ultimately the trial court retains
discretion to sentence and is free to ignore the requests of both the state and the
defendant in imposing a sentence. State v. Wise, 7th Dist. Belmont No. 16 BE 0003,
2017-Ohio-7502, ¶ 12. That said, in a plea agreement, when the state agrees to
recommend a certain sentence to the sentencing judge, it is not free to simply make some
other recommendation and must uphold its part of the bargain, barring some valid legal
reason otherwise.
{¶14} Appellant believes that the state breached the plea agreement by stating
that the recommended period of incarceration pursuant to the agreement was twenty-four
months when the agreement called for a recommendation of only eighteen months. While
Appellant is correct in that the state initially erred in describing its recommendation, the
state did correct this mistake as soon as the issue was brought to the state’s attention.
For context, the entire exchange between the parties and the court is provided:
Case No. 22 CO 0006
–8–
[PROSECUTOR]: So I would ask the Court [to] consider going higher than
the 24-month recommendation based on [Appellant’s] conduct.
…
[DEFENSE COUNSEL]: … The plea agreement recommends an 18-
month term of incarceration, not 24 as previously stated by Mr. Weikart.
…
[PROSECUTOR]: Your Honor, I would say 18 months was it, I was looking
off of a previous version. As the Court’s aware from what’s in there, I didn’t
say that on purpose.
THE COURT: Okay. Thank you. I’m looking at the felony plea agreement
filed February 9th. That’s the one that was filed. There may well be --
[DEFENSE COUNSEL]: Your Honor, that’s probably --
[PROSECUTOR]: That’s the filing date on it.
[DEFENSE COUNSEL]: Yeah.
THE COURT: All right. Thank you.
(Sentencing Hrg. Tr., pp. 6, 13, 15.)
{¶15} It is clear from this passage that the prosecutor misspoke, but corrected
himself when advised that his statement was incorrect. The record reflects that the judge
Case No. 22 CO 0006
–9–
was in possession of a copy of the plea agreement, and counsel for both sides agreed
that this copy contained the correct eighteen-month recommendation. Because the minor
error was corrected and the court acknowledged the correction, no further action on
counsel’s part was warranted.
{¶16} Appellant has raised additional issues related to this argument. In
Appellant’s brief he observes: “[i]t is interesting that a prosecutor would argue that he
desires to incarcerate someone for more time than the law and the plea agreement
allows.” (Appellant’s Brf., p. 4.) In this same vein, Appellant also claims the state argued
to the trial court that his sentence should exceed the maximum allowed for felonies of the
fourth and fifth degree.
{¶17} As to Appellant’s suggestion that the state breached the plea agreement in
its initial recommendation, we note that Appellant himself breached the agreement’s
requirement that he attend all court proceedings. Appellant failed to appear at his
December 20, 2021 sentencing hearing and was not apprehended until a month later. As
noted by the trial court, police arrested Appellant in Mahoning County at a hotel where
there was evidence of drug activity on the part of Appellant, as police located him hiding
underneath a bed in the room where illegal drugs were found. It appears that while
Appellant was attempting to convince the court that he was too ill to be sentenced in this
case, he was well enough to participate in drug activity at a hotel. In addition, Appellant
has also been charged in a separate, unrelated drug arrest in Stark County that
apparently occurred while Appellant awaited sentencing, here. Thus, as Appellant
breached the terms of the plea agreement the state would not have necessarily been
bound to abide by those terms.
Case No. 22 CO 0006
– 10 –
{¶18} As to the inference that the state recommended a sentence of more time
than allowed by law, this is disingenuous and a misrepresentation of the state’s comment.
At the sentencing hearing, the state commented that while Appellant’s charges in this
matter were not at the level of felony one or felony two, Appellant’s conduct in this case
was egregious:
And though I don’t think felony four and felony five penalties -- I don’t think
they can adequately cover the damage that [Appellant] has done in this
community, but that’s what we have, Judge, and that’s a start. And I would
ask that the Court impose a strict prison term on him and send the message
that that’s not going to happen.
(Sentencing Hrg. Tr., p. 12.)
{¶19} The state did not request that the court sentence Appellant to a longer
sentence than lawfully allowed, but instead was arguing for the court to impose a “strict”
sentence for the charged offenses because a lesser sentence would not sufficiently
punish Appellant for his behavior. The state acknowledged that the court could not
sentence Appellant for a higher degree felony but expressed frustration as to the impact
Appellant’s actions have had on the community. The record does not support Appellant’s
contentions otherwise.
{¶20} Accordingly, Appellant’s sole assignment of error is without merit and is
overruled.
Conclusion
Case No. 22 CO 0006
– 11 –
{¶21} Appellant challenges his sentence based on his allegation that various
comments made by the state at the sentencing hearing caused prejudice. For the
reasons provided, Appellant’s arguments are without merit and the judgment of the trial
court is affirmed.
Robb, J., concurs.
D’Apolito, P.J., concurs.
Case No. 22 CO 0006
[Cite as State v. Yates,
2023-Ohio-1019.]
For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the Court
of Common Pleas of Columbiana County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
